Europe spooked by Transatlantic Partnership?

Claudio Gallo is a journalist, currently working as a culture editor at La Stampa, one of the main newspapers in Italy. He was foreign desk editor and London correspondent. Occasionally he writes for AsiaTimes and Enduring America. His main interest is Middle East politics. He was on the streets during the disputed Iranian elections of 2009 and during the start of the so-called Egyptian Spring in 2011. He writing focuses on the Shiite world: Syria, Lebanon, Iraq and Iran. He is banned from India because he supposedly wrote that the real country is very different from the officially publicized image. He likes to interview the last few thinkers who provide alternatives to prevailing ways of thinking.

In Sevran, a commune in the northeastern suburbs of Paris, resistance has already begun. Since April 11 the city has been a self-declared area free from TTIP, the Transatlantic Trade and Investment Partnership, the Atlantic replica of NAFTA.

A resolution introduced by the left oriented group Sevran
Solidaire et Citoyen has been adopted by a large majority of
Sevran's Council. The city is asking the French government to
stop the negotiation regarding the creation of a free trade zone
between America and Europe that has been ongoing for about 10
months.

In Sevran they believe that the treaty “is not so much about
free competition and lack of barriers, it is a threat against our
social model and the French way of life: the dismantling of all
social and environmental protections, salaries and prices
dumping, privatizations, the state attacked by multinationals in
private arbitrations tribunals.”

The fear caused by this grim picture is slowly spreading through
Europe in spite of the fact that the European media usually shut
their eyes in front of it. Furthermore the European elections at
the end of May are approaching and the Euro-politicians already
besieged by hordes of Euroskeptic national parties don’t want to
talk about such a divisive issue. The way in which Brussels has
been trying to present the treaty is typical of this Europe that
lack a political heart, a Banks Club to whom democracy is to
regulate every aspect of life, even a zucchini’s length.

It is nothing less than the hyper-abstract anthropology of
neoliberalism, a world of monadic individuals with no social
links and solidarity, whose liberty is the freedom to choose from
different commodities and the ‘power’ to say everything that pass
through their heads to an anonymous crowd that is not listening.
A world apparently regulated by the magic hand of the market, but
actually an arena in which only the strongest counts and rules,
the law of the jungle indeed.

This is more evident in the United States where, as many
Scorsese’s movies have demonstrated, the magmatic violence of
society is barely covered by a thin peel of formal democracy. The
old Europe, with its centuries of bloody wars on its shoulders,
needs a thicker peel “to pretend to be somebody else”, as the
Randy Newman song ‘Guilty’ asserts. So in the standard European
illustration of the would-be treaty everything is displayed in
its supreme abstraction, every human event is downgraded and
taken under the bureaucratic possibility of being ruled, i.e. its
humanity is dialectically destroyed.

In the end everything is falsified because the abstract truth may
not coincide with the social truth. If the problem lies with just
the simplification and making the commerce among the two
Atlantic’s shores less expensive, who can be against this?

Opening up, but what?

If, according to some economists this opening
process creates new jobs and boosts the GDPs in the long run: who
can be against this? The European and American auto industries
clapped their hands to the treaty to the prospect of saving tens
of millions of dollars by simplified rules: why not?

But unfortunately the problems are more complex than this. It is
this kind of complexity that drove the American media critic
Walter Lippmann almost a century ago to lose his faith in the
democracy from below and to theorize a kind of bureaucratic-élite
class to lead the “bewildered herd.” Even if you are tempted by
this kind of theory, as the Eurocracy seems to be, the point is
that the autonomy of these specialists is a chimera. The élite
also have to submit to the law of the mightier that are currently
often the globalized corporations in our world.

Below the attractive logo of free trade a bunch of monsters is
crawling, all of them complying with the mimicking of Gresham’s
Law: ‘Bad commodities drive out the good ones’. In the
pragmatic words of French Left Party’s MP Jean-Luc Mélenchon,
“In North America the chickens are washed with chlorine, you
will eat chlorine chickens.” And up to now US and EU have
still not dealt with many difficult topics such as the
genetically modified food that is common in the United States,
but still mostly banned in Europe; the hormone-treated beef legal
in America and banned by the Union (although everyone knows that
there are a lot of unscrupulous farmers that use the hormones
also in Europe, it is still illegal).

Ironically a farm animal benefits from very different rights on
the opposites side of the Atlantic. For the Lisbon Treaty, animal
welfare is part of the European values, while in the US, beef is
only a product. Guess which is the strongest view and who is
playing defense? You can describe the making of the treaty as an
American effort to impose its more pro-business jurisprudence on
Europe.

The hidden weapon

But, as the Romans said, in cauda venenum - the poison is in the
tail. That is, the worst is yet to come. Among all the challenges
that this apparent positive free-everything may be posing to the
national way of life of European peoples, one is particularly
insidious because it appears to be a technicality, while it is
actually a huge political issue. They usually present it by its
anodyne initials: ISDS (Investor State Dispute Settlement).

The European Union defines it this way: “Investor to State
Dispute Settlement is a legal instrument that allows investors to
bring a claim before an arbitration tribunal that the host state
has not respected the investment protection rules (under
TTIP).” Again the EU (and also the United States trade
representative, this is how they defend it) are presenting the facts in their
overall abstraction, without including them in a real context in
which the balance (the unbalance, to tell the truth) of powers is
acting.

Let’s try to give a more concrete view of the problem with the
words of Jim Shultz, executive director of the Democracy Center:
the ISDI is “little understood weapon” that the corporations
“have constructed to defend themselves from the challenge: a
vast global web of international trade and investment agreements
and a corporate-friendly tribunal system designed to enforce the
rights that those agreements grant to corporations.”
Politically, the ISDS may become an instrument to
“indirectly” force the governments to rule, or not to
rule, to the corporations’ benefit, because “international
corporations can force governments before international
investment tribunals and compel them to hand over hundreds of
millions of dollars in compensation. (...) The result is a system
that undermines democracy and poses a very serious threat to the
future”.

As Lori Wallach, director of the Global Trade Watch, a division
of Public Citizen, puts it: “It’s like a quiet, slow-moving
coup d’état.” Many arbitration tribunals work without the
slightest transparency, if not in secrecy.

ISDS is not an invention of TTIP. The world is covered by a web
of over 3,000 bilateral and multilateral trade and investment
agreements. In these agreements that are actually building a
privatized justice system the corporations see an opportunity to
take legal action against the governments when their public
policies affect their possibility of business in any way. There
are plenty of examples around the world.

Quebec has been hit by a $250-million damage suit after
introducing a moratorium on fracking it has been implementing
while waiting for scientific studies of the potential impact.
Cited from what a Canadian official reportedly told William Greider: “I've
seen the letters from the New York and DC law firms coming up to
the Canadian government on virtually every new environmental
regulation and proposition in the last five years. They involved
dry-cleaning chemicals, pharmaceuticals, pesticides, patent law.
Virtually all the new initiatives were targeted and most of them
never saw the light of day."

You can find several more examples of this kind of
arbitration in which the state is the loser in Thomas McDonagh’s
study ‘Unfair, Unsustainable and Under the Radar’.

Concerning the ISDI system, even the not-so-revolutionary United
Nation expressed its concern “with the current
ISDS system relating, among others things, to a perceived deficit
of legitimacy and transparency; contradictions between arbitral
awards; difficulties in correcting erroneous arbitral decisions;
questions about the independence and impartiality of arbitrators,
and concerns relating to the costs and time of arbitral
procedures.”

With those facts, the official European assurance that “The
EU aims to ensure a transparent, accountable and well-functioning
ISDS system that reflects the public interest and policy
objectives,” sounds a little bit weird. While the EU is
ruminating on the provisions of ISDS, citizens have been asked
for their views, leading to an example of the Euro-bureaucrats’
surreal concept of democracy: you need a law and economics degree
and plenty of free time to complete the questionnaire. Surely the
average European citizen should have a lot of difficulties trying
to understand it. Judge for yourself: http://ec.europa.eu/yourvoice/ipm/forms/dispatch?form=ISDS

Maybe more tactically than strategically, European politics seems
to be slowing its support to the ISDS system, all the more that
Australia and Japan have just signed a free trade agreement that does not include an ISDS.

There are signs that the French government and especially the
German Government, Europe’s strongman, are considering not to
back the ISDS provisions. Karel De Gutcht, the European
commissioner for trade, usually not perceived as an ISDS enemy,
has said in a recent speech that ISDS system “have raised
concerns about the broad scope of some of the existing 3,000
bilateral investment agreements currently applied around the
world. To put it more provocatively, the fear has been expressed
that these agreements tempt multinationals to bully governments,
in particular in small member states, not to adopt certain laws
or measures. ISDS has created doubts about whether current
investment agreements allow governments the necessary space to
regulate in the public interest. Let me state it loud and clear
that our primary goal on investment protection is to create a
new, improved type of investment agreement. This would make sure
that governments can make policy in the public interest while
still providing for investment protection.”

Do you recognize the official alienating UE philosophy in the
final words? You can have your cake and eat it too. But we have
seen that it is actually very difficult to protect investment (or
expectation of investments) and the public interest at the same
time, especially in a private tribunal. The strongest wins. Guess
who.

The statements, views and opinions expressed in this column are solely those of the author and do not necessarily represent those of RT.